Lookout circular on the basis of PE has no legal sanctity in court: Experts

On January 11, 2015, immigration authorities at the Delhi airport prevented Greenpeace activist Priya Pillai from boarding a flight to UK on the directives of the Union government. Her passport was stamped with an "offload" mark despite Pillai holding valid travel documents and no criminal case pending against her in the country.

Pillai was going to brief the UK parliamentarians about the impact of a London-based company's mining project on local tribes in India. The government tried to defend its action in the court saying that her testimony could have been “prejudicial to national interests". The court, however, rejected the government order and asked it to expunge “off-loaded” stamp from her passport. 

Last week also the country’s top investigation agency, Central Bureau of Investigation (CBI), ostensibly issued a lookout circular (LOC) against Deepak Kochhar, husband of ICICI Bank CEO and MD Chanda Kochhar, and Videocon promoter Venugopal Dhoot in connection with a loan granted to Videocon. The thread joining Pillai, Kochhar and Dhoot cases was that no first information report or FIR was registered against them. The CBI though didn’t officially confirm whether the LOC was issued at its behest, an official said the agency did due diligence and took legal advice before issuing it.

Vappala Balachandran, a former Indian Police Service officer and an expert on national security, said the CBI might have issued the LOC on the basis of a preliminary enquiry (PE) it had registered in the Videocon loan default case. But legal experts and investigating officers are of the view that a PE doesn’t have a legal sanctity in court of law and it is nothing but a routine exercise followed by the CBI before formally launching an FIR. There have been many cases in the past where the CBI closed the PE without registering an FIR as it didn’t find merit or evidence in the complaint.

Legal Position

The Delhi High Court in 2010 had laid down the circumstances under which an investigating agency could seek recourse to an LOC, the procedure to be followed before initiating the LOC, the remedy available to the person, and the role of the concerned court when such a case was brought before it.

“Recourse to an LOC can be taken by (an) investigating agency in cognizable offences under (the) Indian Penal Court (IPC) or other penal laws, where the accused was deliberately evading arrest or (was) not appearing in the trial court despite non-bailable warrants and other coercive measures, and there was likelihood of the accused leaving the country to evade trial or arrest,” the Delhi High Court ruled in a judgement and asked the Ministry of Home Affairs to formulate guidelines in consultation with various investigating agencies and the state police forces. 

The CBI had invoked these provisions to issue an LOC against Karti Chidambaram, son of former finance minister P Chidambaram, in the INX Media case.

Since there was no case registered against Kochhar and Dhoot under the IPC or the Prevention of Corruption Act, aspersions were cast on the CBI’s decision to issue an LOC against them.

A senior police official, involved with the investigation of various sensitive and high-profile cases, believes that the CBI might have jumped the gun under pressure from the Union government, which is facing political heat following the escape of accused like Nirav Modi, Mehul Choksi and Vijay Mallya.

“There are clear-cut directions from the Delhi High Court on issuance of an LOC,” the officer says, further reading the directions, “The Investigating Officer (IO) shall make a written request for an LOC to the competent officer as notified by the circular of the Ministry of Home Affairs, giving details and reasons for seeking the LOC. The person against whom the LOC is issued must join investigation by appearing before or should surrender before the court concerned or should satisfy the court that the LOC was wrongly issued against him.”

Defence

The Ministry of Home Affairs, which issued a circular to investigating agencies and included the Delhi High Court judgement on October 27, 2010, further laid down the guidelines regarding the issuance of LOCs for both Indian and foreign nationals. In one of the guidelines, it said: “In case there is no cognizable offence under the IPC or other penal laws, the LOC subject can’t be detained, arrested or prevented from leaving the country. The originating agency can only request that they are informed about arrival or departure of the subject in such cases.”

Some officials argued that the LOC derives its statutory backing from the Passport Act 1967, which empowers the Union government to revoke passport or any travel documents “if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India or in the interests of the general public".  

Interpol notices

The primary difference between an LOC and an Interpol notice is that an LOC can be issued by Indian investigating agencies such as the CBI, ED, DRI, NRI, Income Tax and state police forces, to the Indian Immigration Bureau office in New Delhi. The Immigration Bureau then circulate it to the various immigration points in the country and Indian missions abroad. But in case of an Interpol notice, the CBI is the nodal agency and process requests on behalf of its organisations. There are eight types of Interpol notices and among the most commonly known is Red Corner notice.

The Red Corner notice is issued to extradite the accused from another country where the person is arrested or detained. The notice, however, doesn’t bind the other country to extradite the accused.

What the law says
 

Recourse to LOC can be taken by an investigating agency in cognizable offenses under the IPC or other penal laws if
 

a. the accused was evading arrest
 

b. not appearing in the trial court despite non-bailable warrants 
 

c. other coercive measures and there was likelihood of the accused leaving the country to evade trial or arrest
 

In case there is no cognizable offence under the IPC or other penal laws
 

a.  the LOC subject can’t be detained, arrested or prevented from leaving the country. 
 

b. the agency issuing LOC can only request that they be informed about arrival or departure of the subject in such cases. 
 

Validity of LOC is one year and it can be issued by the competent officers
 

a. Union government and state governments
 

b. Intelligence Bureau, Bureau of Immigration
 

c. Research & Analysis Wing
 

d. DRI, CBDT, CBEC
 

e. CBI,  NIA, ED, NCB
 

f. District Magistrate and Superintendent of Police

  

Types of Interpol Notices
 

Red Notice
 

To seek the location and arrest of wanted persons with a view to extradition or similar lawful action
 

Yellow Notice
 

To help locate missing persons, often minors, or to help identify persons who are unable to identify themselves
 

Blue Notice
 

To collect additional information about a person’s identity, location or activities in relation to a crime
 

Black Notice
 

To seek information on unidentified bodies
 

Green Notice
 

To provide warnings and intelligence about persons who have committed criminal offences and are likely to repeat these crimes in other countries

Orange Notice
 

To warn of an event, a person, an object or a process representing a serious and imminent threat to public safety
 

Purple Notice
 

To seek or provide information on modus operandi, objects, devices and concealment methods used by criminals
 

INTERPOL–United Nations Security Council Special Notice
 

Issued for groups and individuals who are the targets of UN Security Council Sanctions Committees